PETITION OF KELLY HAGENBUCH (New Hampshire Department of Health and Human Services)
Submitted: September 21, 2016
of Health and Human Services
Tarbell & Brodich Professional Association, of Concord
(Friedrich K. Moeckel on the brief), for the petitioner.
A. Foster, attorney general (Laura E. B. Lombardi, senior
assistant attorney general, on the brief), for the New
Hampshire Department of Health and Human Services.
petitioner, Kelly Hagenbuch, has petitioned for a writ of
certiorari, see Sup. Ct. R. 11, challenging the
termination of her food stamp benefits by the New Hampshire
Department of Health and Human Services (department). The
department terminated the petitioner's benefits because
it found that her income exceeded the maximum amount
permitted by the program. In calculating the petitioner's
income, the department included distributions from an
irrevocable trust, of which the petitioner is the sole
beneficiary, that had been made by the trustee to third
parties. These distributions included payments for trust
expenses and for legal fees that the petitioner had incurred
to obtain public benefits. On administrative appeal, the
presiding officer of the department's Administrative
Appeals Unit (AAU) agreed with the department that the trust
distributions counted as income to the petitioner. In her
petition for a writ of certiorari, the petitioner claims that
the presiding officer erred because the trust distributions
should have been excluded from her income for the purpose of
determining food stamp benefits. We reverse.
record supports the following facts. The petitioner began
receiving food stamp benefits through the department in
approximately 2008. The department is the state agency tasked
with administering the federal supplemental nutrition
assistance program, commonly known as food stamps.
See 7 U.S.C. § 2013(a) (2012) (amended 2014);
RSA 161:2, XIII (2014). Under the program, the department
disburses funds to eligible, low-income households so that
the household members may "obtain a more nutritious
diet." 7 U.S.C. § 2011 (2012). Generally, a
household is eligible for food stamps if the household's
resources and income fall below certain thresholds.
See 7 C.F.R. §§ 273.8(b), 273.9(a) (2016).
Alternatively, a household may be "categorically
eligible" for food stamps, without regard to its
resources and income, if household members qualify for
certain other governmental assistance programs. See
id. §§ 273.2(j)(2), 273.8(a), 273.9(a). The
parties agree that the petitioner is categorically eligible
for food stamp benefits.
from the question of a household's eligibility for food
stamps is the amount of benefits to which an eligible
household is entitled. The amount of benefits an eligible
household receives depends, in part, upon the household's
income. See id. § 273.10(e)(2)(ii)(A); see
also 7 U.S.C. § 2017(a) (2012). In order to track
household income and determine the amount of benefits, the
department periodically requires each household receiving
food stamp benefits to provide current income information.
See generally 7 C.F.R. § 273.14 (2016);
N.H. Admin. Rules, He-W 746.02. This is known as the
recertification process. See 7 C.F.R. §
early 2013, as part of her recertification for food stamp
benefits, the petitioner submitted income and asset
information to the department. In connection with her
submission, the petitioner provided information regarding
distributions made and income generated by the Kelly Jean
Hagenbuch Irrevocable Trust (Trust), of which the petitioner
is the sole beneficiary during her lifetime. The Trust was
originally funded as part of the settlement of a lawsuit
arising out of an injury to the petitioner. Pursuant to the
terms of the Trust, an "Independent Trustee"
(trustee) is vested with the sole discretion to make
distributions to the petitioner or for her benefit.
department examined the Trust's income and distributions
between August 2012 and February 2013 and counted the
following distributions as income to the petitioner
(collectively, "the trust distributions"): (1)
distributions that the trustee made to third parties to cover
trust expenses-trust administration fees, legal fees,
investment-management expenses, and tax preparation fees-and
(2) distributions that the trustee made to the
petitioner's attorneys to pay the legal fees that the
petitioner incurred to obtain public benefits. These
distributions totaled $20, 344.94. None of the distributions
was paid directly to the petitioner.
2013, the department issued a Notice of Decision, in which it
"[c]losed, " i.e., terminated, the
petitioner's benefits, concluding that the
petitioner's net income exceeded the maximum amount
permitted by the program. The petitioner's mother,
serving as the petitioner's representative, filed a
timely request for a "fair hearing" with the AAU.
RSA 126-A:5, VIII (2015).
presiding officer of the AAU affirmed the department's
decision that the trustee's payments to third parties
constituted income to the petitioner. With the inclusion of
those distributions, the petitioner's income would be too
high for her to receive any benefits. The presiding officer
denied the petitioner's motion for reconsideration as it
related to the issues relevant to the present petition. This
appeal, the petitioner requests that we reverse the presiding
officer's decision that the department properly counted
the trust distributions as income. First, she argues that the
trust distributions do not meet the definition of income
under the regulations. Second, she argues that, even if the
distributions are deemed to be income, they fall within one
of the income exclusions in the regulations. Third, the
petitioner contends that the presiding officer erred by
relying upon evidence that was not submitted by either party.
The petitioner also requests that we determine whether future
payments that the trustee intends to make to the
petitioner's guardian will count as income.
only judicial review of a fair hearings decision issued by
the department is by petition for a writ of certiorari."
Petition of Kalar, 162 N.H. 314, 318 (2011)
(quotation and brackets omitted). "Review on certiorari
is an extraordinary remedy, usually available only in the
absence of a right to appeal, and only at the discretion of
the court." Petition of Chase Home for
Children, 155 N.H. 528, 532 (2007). Our review of the
department's decision on a petition for writ of
certiorari entails examining whether the department has
"acted illegally with respect to jurisdiction, authority
or observance of the law or has unsustainably exercised its
discretion or acted arbitrarily, unreasonably ...